In some cases, absolutely. A number of labour decisions over the past several years have considered how an employee’s off-duty social media activity can damage an employer’s business or reputation and/or amount to insubordination. In each of Chatham-Kent (Municipality) v CAW-Canada Local 127, Lougheed Imports Ltd v UFCW Local 1518 and Wasaya Airways LP v ALPA, a unionized employee was dismissed for making negative, offensive comments about his/her employer on a blog or Facebook page. In each case, the employee’s termination was upheld by the arbitrator or labour board.
The BC Supreme Court recently had the opportunity to examine the social media / just cause connection outside the union context in the case of Kim v. International Triathlon Union. The specific issue before the court was whether the employee’s series of social media posts gave the employer “cumulative cause” to dismiss her. At the time of termination, the plaintiff was 34 and held the position of Senior Manager of Press Communications for the Toronto 2015 Pan American Games. Part of her job responsibilities included activity on social media. However, the social media postings that Ms. Kim’s employer relied on as “cause” to fire her occurred on her personal blog and Twitter account.
The various posts, which were made over a series of months, contained negative and critical statements about both the company and her boss. At trial, the plaintiff attempted to explain the various posts as jokes made with no ill intention or, at worst, expressions of frustration or disappointment. Her employer, on the other hand, described Ms. Kim’s comments as troubling, offensive and, in the case of the blog, shocking.
Ultimately, the court concluded:
…that ITU cannot rely upon cumulative cause as a ground for the plaintiff’s termination because ITU did not give the plaintiff an “express and clear” warning about her performance relating to the social media posts, and a reasonable opportunity to improve her performance after warning her.
On the contrary, the company gave the plaintiff a raise and allowed her to continue in her position even after the blog post, and at the time of her dismissal with notice merely told her that her communication style did not align with that of ITU. The employer was found liable for wrongful dismissal, and was ordered to pay the plaintiff damages equal to five months’ salary, based on a period of 22 months of employment.
The lesson for employers from this case can be summed up simply as: communicate clearly! Specifically:
If you have policies or expectations regarding your employees’ social media use, write them down and make sure all employees are aware of them, regardless of whether public communication is part of the employee’s job description.
If you are concerned about a particular employee’s social media activities, share these concerns with the employee immediately, both verbally and in writing, and set out your expectations for future conduct and the consequences of failing to meet those expectations. And of course, allow the employee an opportunity to correct her inappropriate behaviour.
As the labour decisions discussed above suggest, in some circumstances, one or more social media comments may amount to cause for dismissal even where no warning is given to the employee. HOWEVER, if you decide to give the offending an employee a raise or other increase in compensation, it may be problematic to later try to fire him for cause.
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